Moments ago, under questioning by Senator Grassley, John Roberts had a number of interesting responses about his jurisprudential moorings.

If I heard and understood Roberts correctly, his foundation is a strong lawyerly commitment to stare decisis. He not only repeatedly expressed the importance of stare decisis; he also indicated that in the rare situations when he might overrule a prior case, he would faithfully apply the Court's prior statements as to when a case should be overruled. In effect, he would depart from existing law only by following the preexisting meta-rules on when he should depart.

As for grand constitutional theories, he suggested that such commitments are for legal academics more than judges tasked with deciding cases. The reality of decisionmaking by committee, whether in a panel of three judges or nine, is that "the nuances of academic theory" are put aside. Interesting stuff.

Did others get the same impression that I did? I may have missed a few things, but that was the gist of what I heard.

I'm not sure if you saw this morning's questioning by Sen. Specter, who asked Roberts about ten different ways about whether he would overrule precedent (oh, let's say, um, Casey and Roe). He didn't say much that I wouldn't expect - precedents are not overruled lightly but can be when doctrinal underpinnings are eroded. He gave as examples Brown v. Board of Education overruling Plessy, and West Coast Hotel overruling the Lochner progeny.

When he talks in generalities about commitment to stare decisis, he might not be expressing an abstract or theoretical belief about the matter. He might believe that abortion is the most significant issue to many pro-choice senators, and this is his way of intimating to them that he does not intent to overturn Roe v. Wade, thus increasing his chance of being confirmed.

What we are seeing is a part of the political process, not an academic conference about judicial philosophy.

I'm curious to know what those "preexisting meta-rules" are. I haven't heard too much about them from commentators, and the academics who indoctrinated me into the law didn't mention any. Are the meta-rules different for different judges? Different political orientations? Different courts?

Perhaps this is the relevant portion of Casey:
"[W]e may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification."

If Roberts does not vote against Roe, the Republican Party is going to become a minority party again.

I doubt it would happen on those grounds. The GOP has been pretty steadily gaining power since Roe was decided in '73, and they've certainly gotten away with appointing Roe supporters before (Stevens, O'Connor, Kennedy, Souter). If anything, Roe provides the base incitement to "get out and vote".

If we view Roberts as replacing Rehnquist, are the Blue states not a bit ahead (at least relating to privacy), since Roberts has said without quibble (on the record, under oath, in response to Specter) that the constitution has a right to privacy? I do not recall Rehnquist ever saying that.

Well, the recognition of some constitutional right to privacy is not likely to be changed by the full Court, so that difference doesn't have much practical difference.

My hunch is that Roberts is somewhere to the left of Rehnquist, but not by very much. I think the key effect of the change may be found in the cases that the Court takes. Roberts, for example, may not be so big on federalism but may have his own issues he wants to push to the forefront.

Maybe. I find it just as plausible htat if he does vote against Roe, the Republican party will become a minority party again.

Why would that happen? Restoring authority to the states to regulate abortion would mean that the legislatures (presumably reflecting majority will in each state) would again be writing abortion laws. If there is really a majority in most states in support of unrestricted abortion, then why would overturning Roe change the status quo on abortion?

The fact is that there is a majority that reluctantly supports keeping abortion legal, at least in the first trimester (when it is just a blob, and doesn't have eyes, fingers, toes, etc.) but isn't keen on partial birth abortion, abortion without parental knowledge or consent, abortion for sex selection, or abortion on a whim. I don't know that this majority is going to write terribly sensible abortion laws with such a contradictory set of concerns, but it isn't going to be writing laws that ban all elective abortions, either.

Remember that before Roe, several states had already substantially liberalized their abortion laws (in California, after judicial action striking down an existing restrictive law). Even in states such as Oregon that had theoretically very restrictive abortion laws, abortion was actually quite common--more so than some states had post-Roe.

Unless you think that there is an extraordinarily powerful pro-life movement--one that is either a majority of the voters, or such a powerful minority that it is going to walk all over a supposedly strongly pro-choice majority--overturning Roe is not going to dramatically change state laws on this subject.

VFD is correct this is a political interview, with about as much bearing on Roberts true views as one of his briefs for a client. Having, NO judicial philosophy, as to construction or construing the constitution is mot possible.

If we view Roberts as replacing Rehnquist, are the Blue states not a bit ahead (at least relating to privacy), since Roberts has said without quibble (on the record, under oath, in response to Specter) that the constitution has a right to privacy?

Thomas said the same thing as I recall. I hate to be overly cynical, but nothing said in these hearings means much of anything.

Why would that happen? Restoring authority to the states to regulate abortion would mean that the legislatures (presumably reflecting majority will in each state) would again be writing abortion laws. If there is really a majority in most states in support of unrestricted abortion, then why would overturning Roe change the status quo on abortion?

Why do you assume that the states will be regulating abortion if Roe is overturned? Remember Raich?

It's just as likely that if Roe is overturned, and we have pro-lifers in the political branches, that the federal government will impose restrictions on abortion. In that case, states like California that would prefer to liberalize their abortion laws will be out of luck and we'll be in a worse place than we were before Roe (or better, I suppose, depending on your personal preferences).

Maybe. I find it just as plausible htat if he does vote against Roe, the Republican party will become a minority party again.

That doesn't make any sense. I assume the logic is that throwing abortion back into the political arena would force pro-choice fiscal conservatives to support Democrats in order to protect abortion. That's logical as far as it goes -- except that Roberts can't affect Roe.

That doesn't make any sense. I assume the logic is that throwing abortion back into the political arena would force pro-choice fiscal conservatives to support Democrats in order to protect abortion. That's logical as far as it goes -- except that Roberts can't affect Roe.

Are you suggesting that there are still fiscal conservatives in the republican party?

If Roberts does not vote against Roe, the Republican Party is going to become a minority party again.

I doubt it would happen on those grounds. The GOP has been pretty steadily gaining power since Roe was decided in '73, and they've certainly gotten away with appointing Roe supporters before (Stevens, O'Connor, Kennedy, Souter). If anything, Roe provides the base incitement to "get out and vote".

Yes, Steves, O'Connor, Kennedy, and Souter. That's precisely why if the Republican Party once more fails to appoint an anti-Roe justice why they'll be in big trouble. Judicial conservatives, and social conservatives who are aligned on many of the same issues but for different reasons, are what drive the Republican Party.

Bush said his favorite justices were Scalia and Thomas. So far Roberts looks nothing like them. I can only feel that this is Souter II, and I can't say I am very happy about it. You can't claim you're pro-life, that you greatly admire Scalia and Thomas, and then appoint Souter II. That is a recipe for destroying the Republican Party. I am disturbed Roberts so readily dismisses the idea of judicial philosophy. All this homage to "meta-analysis" and super-precedents and the importance of stare decisis makes me want to puke. Either Republicans are afraid of what we stand for or we don't stand for what we tell the American people.

If abortion truly was truly deferred to the states then the status quo wouldn't change much. However, it is very likely the the federal government would try to move in on the issue and this court doesn't have the votes to be consistent about federalism.

Casey seems to me unlikely to come up for review until a conservative Circuit Court decides the court might finally strike it down. I don't know how Roberts would vote on Casey/Roe; perhaps Roberts doesn't know, either. He probably will be a solid vote for severely restricting the scope of Roe, however--starting with partial birth abortion.

"Are fiscal issues inherently more, or less, important to these (and other) voters?"

For a fiscal conservative, they are more important than most social issues. Without a strong economy there can be no strong social policy. Almost everything is derived from economics in day to day life. Abortions don't happen every day, whether you use $20 or $60 dollars at the pump is. Economic > social, for a fiscal conservative else they wouldn't be a fiscal conservative.

Fiscal liberals are the ones that say "This social issue must be corrected, and we'll use every means necessary including new untested theories on economic distribution to reach our goal." Sometimes this works out, and sometimes it doesn't.

That's precisely why if the Republican Party once more fails to appoint an anti-Roe justice why they'll be in big trouble.

I extremely doubt that. It's never hurt them in the past (one might make the case it even helps them), and the Supreme Court is rarely ever a voting issue for people. Yes, a moderate Roberts would de-energize the base, but they'd still turn out on election day.

Bush said his favorite justices were Scalia and Thomas. So far Roberts looks nothing like them.

Overturning Roe would potentially split libertarian leaning Republicans from the social conservative wing of the party. Economic issues are not that important to evangelicals and they have allied with the party because of it welcomed them in starting with Reagan.

No, it's not. He has renounced having a judicial philosophy. Thomas and Scalia are driven by judicial philosophy. Whether or not he will vote conservatively is unknown, but the very fact he doesn't view judicial philosophy as important to judging is troubling.

"Overturning Roe would potentially split libertarian leaning Republicans from the social conservative wing of the party."

Good riddance. Libertarians are an insignificant percentage of either party, and I say that as a somewhat libertarian minded person. Libertarians should support over-turning Roe because of the perversion of constitutional law that it is.

I sincerely doubt that most people who vote Republican are going to hand power to the Democrats if Roberts doesn't vote to overturn Roe v Wade. It's a small core of voters in GOP ranks who fell so strongly about that, and would they really want to turn power over to Democrats? Do they view the Democratic Party as a better alternative. Of course not.

Personally, I think tax and fiscal issues drive a larger portion of the Republican base. If I am wrong, and social conservatives vote -- or decide not to vote -- in such a way as to give Demcrats power, they would get what they would deserve for being so foolish. I trust that most hardcore voters, whether Democrats or Republicans, prefer half a loaf to none. There's ample historical proof to bear that out (though of course there are also some anomalies).

I lean to the view that the reversal of Roe in the Supreme Court would represent a short-term setback for Republicans. The issue would be widely exploited, and even though many states would pass laws extending the right, I could see the GOP losing enough women and independents to shift power to the Democrats.

Such speculation, however, is unconfirmable, and our judgments are informed by a variety of specific cirmstances that leads us to foresee vastly different outcomes. I've lived in states where the general right is highly valued across a broad swath of the electorate. That shapes my analysis. I might think differently about the level of public support if I lived in areas where that was not the case.

Why do you assume that the states will be regulating abortion if Roe is overturned? Remember Raich?

It's just as likely that if Roe is overturned, and we have pro-lifers in the political branches, that the federal government will impose restrictions on abortion. In that case, states like California that would prefer to liberalize their abortion laws will be out of luck and we'll be in a worse place than we were before Roe (or better, I suppose, depending on your personal preferences).

Do you honestly think that pro-lifers are so dominant in Congress that they are going to try and pass a federal law banning abortion, and taking away the authority of the states?

Has it occurred to you that lots of Americans are conservatives, and would consider such an attempt to be illegitimate, and would respond with outrage to such a liberal attempt at taking away the authority of the state legislatures?

JohnS writes:

Overturning Roe would potentially split libertarian leaning Republicans from the social conservative wing of the party. Economic issues are not that important to evangelicals and they have allied with the party because of it welcomed them in starting with Reagan.

Here's one of the hazards of engaging in stereotyping. Economic issues are of high importance to evangelicals. Focus on the Family often discusses the destructive effects of high marginal tax rates on families. Even when I was active within the Libertarian Party, there was a sizeable minority that regarded abortion as murder.

It isn't so much that Republicans welcomed evangelicals as that Democrats aggressively encouraged them to go elsewhere starting in the late 1970s.

Latex - Even if economic > social, there's no clear difference between the parties anymore (see Santorum's book). The R party doesn't court fiscal conservatives anymore - it takes us for granted. I predict it will have the same ultimate result as the D party's treatment of union members and Jews.

I commented above that a vote against Roe by Roberts could return the Republicans to minority status. I don't predict that happening, I just find it at least as plausible as a vote for Roe having that effect.

Clayton, this has nothing to do with what state legislatures subsequently do. (Nor does it have anything to do with my personal preferences.) However, there is a large contingent of voters who accept Roe and its general restrictions on legislative action, as a given. If that contingent believes Roe has been overturned, that will threaten a core value for them, and they will vote based on it. There would be massive turn-out to vote against anyone associated with the actual, successful overturning of Roe v. Wade.

Yes, there would probably also be substantial turnout in the other direction. And if Roberts does not vote to overturn Roe when the occasion arises, presumably Challenge believes there will be massive boycotting of Republicans by pro-life voters. In both cases, the bulk of the response will probably be in anger at the outcome -- and in both cases that anger would hurt Republicans.

Again, this isn't a legal matter (where I have some actual training), it's a political one. Your conclusions may vary.

Do anyone think the fundamentalist Christians will stop and go home happy when Roe is overturned? Of course not, they will pressure the Republicans (assuming they still control the Congress) to federalize restrictions on abortions that will collide with state laws in places like CA and NY. This is the worst nightmare for Republicans. From gay marriage to medical marijauana, it is clear social conservatives don't really believe in federalism.

A Congress that passed the Terry Schiavo law can hardly be considered to be a body harboring any concerns about usurping the authority of the states.

Not to mention Raich v. Ashcroft, the Oregon assisted suicide law, among other examples. Today's so-called conservative party has tossed aside the respect for federalism they used to profess just like they've squandered the reputation for fiscal responsibility the party spent decades to build.

Do you honestly think that pro-lifers are so dominant in Congress that they are going to try and pass a federal law banning abortion, and taking away the authority of the states?

Has it occurred to you that lots of Americans are conservatives, and would consider such an attempt to be illegitimate, and would respond with outrage to such a liberal attempt at taking away the authority of the state legislatures?

I hope Roberts is serious in his stated approach to stare decisis. That would be the stance I want in a supreme court candidate of any "political" philosophy. And would, I think, if he is confirmed, serve to put a break on Scalia and Thomas, who don't seem, to me, to shared his stance towards stare decisis.

Clayton, this has nothing to do with what state legislatures subsequently do. (Nor does it have anything to do with my personal preferences.) However, there is a large contingent of voters who accept Roe and its general restrictions on legislative action, as a given. If that contingent believes Roe has been overturned, that will threaten a core value for them, and they will vote based on it. There would be massive turn-out to vote against anyone associated with the actual, successful overturning of Roe v. Wade.

Let's see, according to this article, a March Harris Poll found that 23% favored no restrictions on abortion (Roe as popularly misimagined), and 76% favored some/all restrictions on abortion. A Zogby poll done in December found that 53% agreed with the statement, "Abortion destroys a human life and is manslaughter" while only 36% disagreed. Unless you are suggesting that a sizeable fraction of the 23% in the Harris Poll or of the 36% in the Zogby Poll are currently voting Republican, I don't see how overturning Roe is going to cause a Republican backlash. There are pro-choice Republicans, but they don't tend to be spectacularly strident about it. The Democratic Party is where the most insistent of pro-choicers vote right now.

Assuming Roe/Casey were overruled, under what authority can Congress regulate abortion? The Commerce Clause? The Spending Clause? Section 5 of the 14th Amendment?

Even with Raich's reaffirmation of the New Deal Commerce Clause cases, regulating abortion won't be like regulating wheat or pot. It's not an economic activity . . . so where's the interstate commerce connection?

Under the Spending Clause, Congress would have to forbid any doctor receiving federal funds from performing an abortion. That could be defended, but cash-only clinics wouldn't be affected by definition.

And under Section 5, no anti-abortion legislation would work because Congress would have to find a pattern of intentional discrimination of fetus rights at the states' hands, and then the regulation would have to be proportional and congruent to the problem. Since Rob/Casey made abortion legal, there could be no intentional discrimination.

Anyone, what's the theory for the constitutionally defensible federal regulation of abortion post-Roe/Casey?

Huh? I don't lust for majoritarian tyranny. I lived in California, and I have plenty of experience with majoritarian tyranny. What I do lust for is Constitutional government. The Constitution granted certain powers to the federal government, and left all other powers to the states. The Ninth Amendment plausibly reserved rights to the people that were not then being regulated or prohibited by the federal or state governments (including, I would argue, first trimester abortions).

The Fourteenth Amendment further limited the power of the states by incorporating the first eight amendments as protections of individual rights through the privileges and immunities clause. Unfortunately, the Supreme Court has chosen to engage in the intellectually dishonest and historically unjustified "selective incorporation" rule instead, ignoring the privileges and immunities clause.

All of these are protections against majoritarian tyranny. The original Constitution, with a small number of individual rights guaranteed against federal action. Amendments I through VIII limited federal power against individuals. The Ninth Amendment reserving individual rights against the federal government. The Fourteenth Amendment's privileges and immunities clause incorporated Amendments I through VIII as protections of individuals against state power. However, these are not full guarantees against majority will. If you really want a jurisocracy, where judges make all the laws, argue that case. But until we abolish elections (as I am sure you would be happy to do), the majority does still have the authority to pass laws that do not conflict with the Constitution--and by that, I mean the written Constitution, not the one that you have imagined.

Many. Try reading the WSJ editorial page or even National Review. Republicans are getting ants in the pants over the budget.

If they exist, I think you guys should start electing some of them to office. That's the only thing that could potentially appeal to me about the republican party, and lately I've seen no evidence that the alleged republican fiscal conservatives exist.

Beware anyone selectively quoting polls on abortion. The polls I've seen do not add up to anything like a logical position on abortion, on the part of the American public. Unsurprisingly, given the complexities of the issue.

"The Ninth Amendment plausibly reserved rights to the people that were not then being regulated or prohibited by the federal or state governments (including, I would argue, first trimester abortions)."

If you believe this, then why are you against Roe? If you think there is a constitutional right to elective abortion at some point in pregnancy, why is it particularly offensive when the Court finds the right exists throughout pregnancy?

If they exist, I think you guys should start electing some of them to office. That's the only thing that could potentially appeal to me about the republican party, and lately I've seen no evidence that the alleged republican fiscal conservatives exist.

We'd loved to do it, but if Republicans started picking serious budget hawks, the Democrats would end up back in charge of Congress. When Newt Gingrich led the Republicans to control of both houses in 1994, they were serious about fiscal responsibility. Now that they have been up there for a few years, they are becoming just as dependent on pork barrel politics as the Democrats were to retain power.

I can't see Roe being overturned, but it would probably benefit Dems if it did.

Accepting Clayton's numbers -- Anti-abortion Republicans will push both nationally and in the states for an outright ban on abortion (or very close to it). They will have success in some states, winning primaries and press the agenda in legislatures. This will drive the moderates without party and some moderate Republicans to vote for Dems in elections, not exclusively on abortion, but because it is a stand in for lots of issues. This has played out already in Kansas, to some degree, where a very red state elects a Dem governor because much of the state party machinery was taken over by the far right.

An alternative possibility is that the far right does not succeed within the Republican party, which pushes restrictions on abortion but relatively modest and not nearly absolute ones. This is not much different from the status quo after Casey, but it might possibly cause the far right to split off from the Republican party in some instances.

If you believe this, then why are you against Roe? If you think there is a constitutional right to elective abortion at some point in pregnancy, why is it particularly offensive when the Court finds the right exists throughout pregnancy?

Because the state of the law in 1791 when the Ninth Amendment was ratified didn't recognize such a right. Abortion after quickening (the fetus started kicking) was a criminal offense, although apparently not widely prosecuted. (Perhaps not widely performed, either.)

If Roe had been decided based a consistent original intent argument, instead of a highly questionable "right to privacy," it would not have led to partial-birth abortion. It would not have led to the more absurd situations such as a right of minors to have abortions without parental consent or knowledge. (Sorry, you can't have an aspirin here in the school nurse's office, but we'll be happy to arrange for a secret visit to the abortion clinic without your parent's knowing about it.)

I think you care more about the abortion issue than I do, thus I have not troubled to keep track of the various polls. I know I've seen many that show mutually incompatible results, probably due to different questions and methods; the point is that you've seen these too, and know that the polls have limited utility for gauging peoples' positions and the strength with which they hold them. (This is not an issue I'm very interested in debating.)

Regarding who would vote in response to an overturning of Roe, I don't think there are lots of Republican voters who will respond by turning against their party. I do, however, think there are a great many independents and fellow-travelers with Democrats who usually don't vote, but will turn out in that case. That's where the surge would come from to reduce or reverse Republican minorities.

Finally, I broadly agree with your comments on constitutional structure and incorporation. Why do you believe Amendment IX was not also incorporated as a protection of individuals against state power?

If you believe this, then why are you against Roe? If you think there is a constitutional right to elective abortion at some point in pregnancy, why is it particularly offensive when the Court finds the right exists throughout pregnancy?

Let me explain it to you by analogy. The Second Amendment guarantees an individual right to keep and bear arms. I've argued that position strongly in such books as For The Defense Of Themselves And The State: The Original Intent and Judicial Interpretation of the Right To Keep And Bear Arms (Praeger Press, 1994).

This right isn't unlimited, and you can can make an argument based on the state of the law at the time that the "arms" protected would be those that you could pick up and carry, but not necessarily weapons of mass destruction. The modern equivalent would be firearms, but not necessarily helicopter gunships or nuclear weapons. This upsets some people, because I am saying that original intent analysis takes precedence over current political interests or desires.

There is a strong case that states retained the authority to regulate firearms ownership and possession based on issues of public safety. For example, states often regulated how much gun powder you could keep in your home, and Boston prohibited leaving firearms, grenades, mortars, and artillery pieces loaded in your home, because of the hazard that they represented in the event of a fire. (Yes, hand grenades were offered for sale to the general public in 1780s ads in places like Philadelphia.)

Finally, I broadly agree with your comments on constitutional structure and incorporation. Why do you believe Amendment IX was not also incorporated as a protection of individuals against state power?

Because the Bill of Rights was recognized as a limitation originally only on federal power. Madison would have preferred something that applied more generally to majoritarian tyranny--his notes clarify that he recognized this as a real problem--but the rest of Congress does not seem to have shared Madison's view. I am open to discussion of this.

The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the "central holding." It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137 (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts.

Yes, but abortion is becoming as ineffective as a stand-in for the protection of individual liberties in general from government encroachment as slaveholders claims were as a stand-in for property rights in general. This is because in both cases there is another human being and their rights involved. Just as the slave came to be seen as fully human, the support for slaveowner's rights collapsed (not without a fight), so too as technology leads us to see unborn children (especially in the third trimester) as fully human, so will the support for unfettered abortion. Unfortunately, this is also unlikely to happen without a similar fight, given the perception (false, I would claim) now, as then, that larger issues are at stake.

Because the Bill of Rights was recognized as a limitation originally only on federal power.

I think that begs the question. Yes, you are correct in this statement, except the "because". The Fourth Amendment was a restriction only on federal power, but no serious arguments are now advanced that it wasn't incorporated via the 14th -- so why not the Ninth?

I doubt it. I don't care strongly about it. I do care strongly about how the Constitution has been abused to serve a political purpose that could not be achieved by persuasion.

thus I have not troubled to keep track of the various polls. I know I've seen many that show mutually incompatible results, probably due to different questions and methods; the point is that you've seen these too, and know that the polls have limited utility for gauging peoples' positions and the strength with which they hold them. (This is not an issue I'm very interested in debating.)

I think it is more likely that Americans hold conflicting opinions on abortion because they are troubled by it, and yet they want to make exceptions: justice tempered with mercy.

The 12 year old who got pregnant out of ignorance, or because she was raped by her stepfather, generates a lot of sympathy. The 45 year old who thought that she was past worrying about pregnancy generates a bit less sympathy. The well-educated 25 year old who can't be bothered with consistent use of contraceptives gets very little sympathy--especially on the second and third abortions.

Of course, there's one other part of the equation that tends to get ignored: easy abortion removes responsibility not only for the mother who won't be careful with contraception, but also for the father who is too lazy to use a condom.

Judge Roberts's comments are bland and decidedly unhelpful. "I like stare decisis," he says, "and I think we should only change rules in situations like the ones where we've changed the rules before." What are some of those situations?

Well, the most obvious one that comes to mind is the tolerance of anti-sodomy laws, affirmed in Bowers v. Hardwick and rejected 17 years later in Lawrence v. Texas. On a visceral level, the Court struck down anti-sodomy laws simply because it didn't like them. Oh, it had to ground that rejection in the right to privacy, the same place that in Bowers the Court said it couldn't find that very same right half a generation before. But the Lawrence Court, so far as I can remember, didn't even try to fit its holding under one of Casey's meta-rules for overruling prior precedent.

Judge Roberts's answer to the question, "Was Lawrence an appropriate case for departing from stare decisis?", would be very interesting to hear — it would allow us to make some hay out of his work in Romer v. Evans. Have we heard it?

Clayton and Shelby, you're both right, at least partly. Clayton, you are correct that states will regulate abortion once Roe is reversed -- some have already done so even after the Roe decision, anticipating that it will be reversed (at least some of such legislation generally protects abortion rights). And you are also right in that it makes no sense for Democrats to fight for Roe if there is bipartisan support sufficient to implement, state by state, sensible abortion policies (there probably is, but neither NARAL nor determined anti-abortion activists will satisfied with those policies, but so what?). Shelby you are right that Democrats will be energized by a reversal of Roe, because huge numbers of otherwise rational Democrats have had the Reversal of Roe = Back Alley Abortions Kool Aid, and are apparently too stupid or willfully ignorant (same thing, of course) to comprehend that policy-making by the usual method (you know, legislation) would accomplish what all but the fringe-dwellers care about on the issue. I don't see federal legislation on the issue once Roe is reversed; the people who oppose Roe because they want to prohibit all or most abortions are a tiny minority and (hopefully) couldn't persuade the rest to join in further trashing what's left of constitutional federalism; most are in favor of prohibiting only late-term abortions and of course there are some (yours truly included) who are moderately pro-choice but believe strongly that that such policies should be made by state legislatures not federal courts.

Actually, what you've outlined is pretty much my view. I don't agree that the people who oppose Roe because they want to prohibit all or most abortions are a tiny minority -- maybe it's a matter of defining "tiny" but I think it's 20% or thereabouts. Though this gets back toward the whole polling issue, supra.

Cramer wrote:
"If you really want a jurisocracy, where judges make all the laws, argue that case. But until we abolish elections (as I am sure you would be happy to do), the majority does still have the authority to pass laws that do not conflict with the Constitution--and by that, I mean the written Constitution, not the one that you have imagined."

I went to law school (as a student of a VC conspirator) so I'm familiar with the Constitution. I also read the Federalist papers, and can understand that elected officials are not mere proxies for the majority will (nor the purported will of their chosen deity).

As for your strawman, the judiciary does seem to be the last branch that understands this point, but I would prefer elections with candidates who do too. And lest you think this is R-bashing, Clinton was as guilty as Gingrich of pandering to a majority.

The real issue is the balance of powers, which has been left to the unelected by the cowardly, greeded elected. I'd like to think that if the power to restore balance hadn't been "found" in the commerce clause, some justice would've fashioned an reason out of some other bit of the constitution to reign in the other branches.

Maybe I'm reading in a little too much, but it seems to me that, in answering the way he did in his very first response, he is sending a message that he is something of an originalist:

'Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents. So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.'

That Robert's has disclaimed a judicial philosophy proves that Bush should yank his nomination now, right now. Bush promised judges in the mold of Scalia, &Thomas; i.e. one's who adhere to some type of originalist philosophy of Judging.

I went to law school (as a student of a VC conspirator) so I'm familiar with the Constitution. I also read the Federalist papers, and can understand that elected officials are not mere proxies for the majority will (nor the purported will of their chosen deity).

As for your strawman, the judiciary does seem to be the last branch that understands this point, but I would prefer elections with candidates who do too. And lest you think this is R-bashing, Clinton was as guilty as Gingrich of pandering to a majority.

Your first paragraph above argues that elected officials aren't going to follow the majority will. There's no question that legislators will ignore a majority for a while, especially if the issue isn't something that generates much passion. I don't think that abortion is in the "not much passion" category.

Your second paragraph refers to "pandering to a majority." So what is your concern? That abortion restrictions represent majority will? Or that officials will ignore that majority will? I'm not quite sure what you point is on this question.

There are people who believe quite strongly that abortion is always wrong--and they tend not to buy into "exceptions for rape and incest" excuse. (If abortion is really murder, why an exception for rape and incest? That makes no sense.) I would guess that this is a pretty small minority of Americans--perhaps as little as 10-20%. There's a similarly sized group that believes in abortion on demand, even right up to one minute before natural birth, even for sex selection. I don't believe that either group is going to end up making the laws post-Roe. Both groups will have some influence on the laws--but the majority that wants some restrictions is going to be the group that has the most influence.

"Whoa there, fella, "a similar fight"? Think for a minute about the fight we had in your comparison situation."

I've thought about it more than a minute, indeed I've lived it, it is the underlying dynamic of our current discord, as far as I can tell, and it only seems to be getting worse. I hope for a non-violent solution, but history is not grounds for much hope on that account.

The real lack of sympathy, and rightly so, is with the late 20's and older male predators who make use of easily available abotion to continue taking advantage of teenage girls with few consequences.

If you'll excuse me another sports metaphor, the left has spent so much time and effort working the refs, that they've forgotten how to coach. It's not terribly hard to imagine Roberts as a Dem with a Dem majority on the committee arguing for his confirmation. Thrity years of neglecting the meat and potatoes, such as the issue noted above, eventually takes its toll.

One of the greatest things for the liberals is they have been able to successfully link pro-life people with a supposed religious belief to their objection to abortion.. The truth is however different. Science gives the truth to the statement of life beginning at conception. Where it gets muddled is not in the fact of when human life begins but where it is legally going to be protected. And that is abitrary in the extreme. That is all opinion. That is where belief steps in not science. Not all libertarians take to pro-choice view as the true libertarian view.

There's just no way, no mechanism, for civil disagreement over abortion to break into widespread armed conflict. Could there be an increase in violence, terrorism along IRA lines? Conceivably, though I think it highly unlikely. But in every such ideological conflict I can think of offhand there is (a) an underlying territorial distinction between the two sides, and (b) an economic incentive for one side to launch or perpetuate the conflict.

The first arguably could exist here (though I don't think so), but the second certainly doesn't. This sets aside the fact that slavery generated much stronger passions among the non-enslaved, than abortion does now.

Let me comment on the exception for the life of the mother. As a physician this is not hard to understand. Plus there is really very few cases where this would come up with modern medicine. I have a hard time thinking of almost any medical case that could not be handled. The choice would be left with the pregnant woman because she is making a medical decision based on the risks of contuining the pregancy, to what point of pregnancy and under what medical circumstances and treatment. This is NOT in any way the same as abortion for lifestyle choice. Incest and rape are of coarse different entirely. Most probably think this should be left to the woman because in these cases she did not consent to the sexual act that caused the pregnancy. Really these are all red herrings in a way because everyone knows that 90+ percent of abortions are done strickly for lifestyle or to cover up the consequenses of human sexual relations.

Even with Raich's reaffirmation of the New Deal Commerce Clause cases, regulating abortion won't be like regulating wheat or pot. It's not an economic activity . . . so where's the interstate commerce connection?

You really need to go read Raich again. If growing a certain plant in your own home for your own consumption (never to be sold, let alone cross state lines) is economic activity that effects interstate commerce, then paying a doctor for a service certainly is.

"There's just no way, no mechanism, for civil disagreement over abortion to break into widespread armed conflict."

Exactly. Just as there was no pre-existing mechanism for civil disagreement over slavery to break into widespread armed conflict. And yet it did regardless.

The problem was (and is) that the existing mechanisms for handling non-armed conflict also proved (and are proving) unequal to the task at hand. Specifically, those defending the settled practice (slaveholding then, abortion now) see these practices as emblematic of much larger issues, for which they were willing to go to any length in defense - i.e. property rights/state sovereignty/individual liberties in general, and concerning which there can be no compromise.

A union as diverse as ours without compromise is an inherently unstable one.

Just as there was no pre-existing mechanism for civil disagreement over slavery to break into widespread armed conflict.

But there was: the slavehlding states themselves furnished the mechanism; they broke away as states because, within themselves, they shared a common interest. No such type of organization exists on either side of the abortion divide.

There simply is not enough motive to drive a civil-war-type conflict over abortion in this country.

Clayton, I'd very much appreciate hearing your response to my question about incorporation of the Ninth Amendment.

I think that begs the question. Yes, you are correct in this statement, except the "because". The Fourth Amendment was a restriction only on federal power, but no serious arguments are now advanced that it wasn't incorporated via the 14th -- so why not the Ninth?

I'm not sure that I understand what your interpretation of the ninth amendment is that it is capable of being incorporated? In my view, the first eight amendments are incorporated. The nintha nd tenth are federalism provisions which, by definition, are unincorporable.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Nothing in there about the federal government, just the scope of rights recognized in the Constitution. If the First Amendment rights are incorporated, why not the others retained by the people? I much prefer the "privileges and immunities" approach to incorporation (for other reasons), and see no reason why Ninth Amendment rights are not privileges, immunities or both.

Shelby, can you incorporate the 10th amendment and apply it against the states, too?

One cannot really separate the 9th from the 10th. One pertains to powers, and one to rights, but they both emphasize that the federal government is one of enumerated powers. That is the purpose of both the 9th and 10th Amendments. It doesn't make sense to apply those amendments, whose purpose was to emphasize the already existing design of the Constitution, against the states.

"There simply is not enough motive to drive a civil-war-type conflict over abortion in this country."

Would you advance the claim that the Civil War was exclusively about slavery? primarily? I'm not trying to play Chicken Little here, but to suggest that unless/until abortion is delinked from the larger issues it supposedly represents, there will be deep and unbridgeable faultlines in our polity that do our country great harm.

In the Civil War case, neither side was able to delink the question of slavery from the larger issues of the day, with eventaully dire consequences. I say "able" in hindsight, though it would perhaps be more accurate to say "willing," given the vested interests involved in keeping it linked. So too have we such interests today.

I'm accusing you of advocating the paradigm that majority opinions should prevail in our government. You routinely cite opinion polls that some majority percentage share some opinion as a reason (apparently) that the minority should be legally bound to it.

The founders were quite explicit that mere majority opinion should NOT be the basis of government. Representative democracy requires representatives that understand the system, and are willing to resist majority opinion. The hard question should be WHEN a majority opinion should be rejected to protect the minority, but today the legislative and executive branches don't seem willing to resist a majority at all. The judiciary stands alone in willingness to resist majorities, and it's the other branches that have it wrong.

Nothing in there about the federal government, just the scope of rights recognized in the Constitution. If the First Amendment rights are incorporated, why not the others retained by the people? I much prefer the "privileges and immunities" approach to incorporation (for other reasons), and see no reason why Ninth Amendment rights are not privileges, immunities or both.

Because the ninth amendment creates no priveleges or immunities. The preceding eight amendments create priveleges and immunities of citizens of the United States, and then the ninth says, in effect, "by the way, just because these are priveleges and immunities that prevent the United States infracting on certain rights, don't misread this as being a list of ALL the rights that the people have. That isn't the name of the game here; all that is not surrendered is retained". When you look at the concerns of the Framers who argued against a bill of rights, and the language proposed that eventually became the bill of rights and the ninth and tenth amendments, this snaps into very clear focus, for me. The tenth amendment is a statement that the powers not granted to the Federal government remain with the people, excepting those powers which the people had already delegated to the states. The Ninth is a statement that there are rights retained by the people to which the constitution does not speak. Therefore, by its own terms, it cannot be incorporated under P&I, because it does not create any priveleges or immunities for U.S. citizens which may not be abridged. IMHO.

The Fourth Amendment was a restriction only on federal power, but no serious arguments are now advanced that it wasn't incorporated via the 14th -- so why not the Ninth?

Because proponents of the 14th Amendment argued that it would impose the first eight amendments against the states. Rep. Bingham actually went so far as to then read them.

Aultimer says:

I'm accusing you of advocating the paradigm that majority opinions should prevail in our government. You routinely cite opinion polls that some majority percentage share some opinion as a reason (apparently) that the minority should be legally bound to it.

Unless the law in question clearly violates the Constitution, yes, majority rules. What's so complicated about this?

The founders were quite explicit that mere majority opinion should NOT be the basis of government.

This is why they guaranteed a republican form of government to every state? This is why every state constitution at the time provided for the masses to elect representatives?

Representative democracy requires representatives that understand the system, and are willing to resist majority opinion. The hard question should be WHEN a majority opinion should be rejected to protect the minority, but today the legislative and executive branches don't seem willing to resist a majority at all. The judiciary stands alone in willingness to resist majorities, and it's the other branches that have it wrong.

You aren't even arguing consistently for minority government--just sometimes. And when should the minority be allowed to decide the laws, and when should the majority be allowed to decide the laws?

This is why they guaranteed a republican form of government to every state?

"A republican form of government" is not necessarily a synonym for bicameral directly-elected representative government. The Framers created a Republican form of government for the United States, but they provided for the direct election of only one of its four constituent parts. I don't necessarily support majority rule, I support the constitutional rule of law, and the democratic process in said branches of government.

SimonD:
The Ninth is a statement that there are rights retained by the people to which the constitution does not speak. Therefore, by its own terms, it cannot be incorporated under P&I, because it does not create any priveleges or immunities for U.S. citizens which may not be abridged.

I disagree. It does not "create" privileges or immunities which may not be abridged; it merely recognizes them. And the first eight amendments do the same thing. They specify particular privileges and immunities that the people retain, because the Constitution does not specifically invade them. They are not an exhaustive list. There is no reason they should be an exhaustive list with respect to the states (post-incorporation), if they are not with respect to the federal government.

Clayton:
Because proponents of the 14th Amendment argued that it would impose the first eight amendments against the states. Rep. Bingham actually went so far as to then read them.

Some proponents, yes, though there is no way to ascertain what most of them thought. I think it more valid to read the amendment from the perspective of the ratifiers than the drafters, or better still from the natural meaning of the words. There is nothing about the words of the 14th to suggest that Amendments 1 through 8 are incorporated against the states, but not Amendment 9; that is a strained reading. I suppose it comes back to whether you consider the 9th to be purely a caveat, or to have real meaning; if the latter, it must necessarily be incorporated, and I think the drafters meant their words to have real meaning.

I'm not arguing FOR minority government. I'm pointing out that representatives in a representative democracy are required to protect the interests of minorities. They've utterly failed to do the job if they simply enact everything 50.1% of the populace prefers. It's the check/balance that makes representative democracy better than government by poll. That may be a fine point for folks who rely on public school civics lessons for an understanding of government, but shouldn't escape you, even if you'd prefer it weren't true.

And when should the minority be allowed to decide the laws, and when should the majority be allowed to decide the laws?"

I made it quite clear that WHEN is the hard question. Simple answers to that question guarantee bad results.

"A republican form of government" is not necessarily a synonym for bicameral directly-elected representative government. The Framers created a Republican form of government for the United States, but they provided for the direct election of only one of its four constituent parts. I don't necessarily support majority rule, I support the constitutional rule of law, and the democratic process in said branches of government.

You keep avoiding answering the question: at what point is the majority allowed to make laws? I've given you a specific description of what, under the Constitution, restrains the majority: when they make a law that denies a right guaranteed by the Constitution. Now, we have a situation today where rights that are explicit are routinely ignored (such as the right to keep and bear arms) while other rights that seem to be, at best, an extrapolation from "penumbras and emanations" are sacrosanct. To put it bluntly, a Court that dodges or denies the Second Amendment protects an individual right to keep and bear arms (a right well established to be individual from contemporary sources) while finding a Constitutional right to engage in acts that were felonious in every state in 1791 and 1868, is not a Court that takes the Constitution very seriously.

There is a definite gap between what the legislature should do, and what the Constitution allows. San Francisco, for example, recently passed a county ordinance specifying in considerable detail what sort of housing owners must provide for their pets--and because of the stupidity of the San Francisco Board of Supervisors, they banned a very popular and quite effective style of doghouse known as the Igloo. Should they have passed this ordinance? I would say that it is not the government's job to tell everyone what to do, how to do it, with whom, and when. But San Francisco has the Constitutional authority to be idiotic.

I made it quite clear that WHEN is the hard question. Simple answers to that question guarantee bad results.

Let's hear a complex answer to that question, then. I fear that your complex answer is, "It depends." That's not Constitutional interpretation; it's the judiciary acting as superlegislature. Lawrence was decided the way that it was because five members of the Court decided that Texas's law was unfair, unreasonable, and unjust. I am inclined to agree--especially because Texas's homosexual sodomy law was written when they decided to repeal the bestiality statute, in 1974. (What were they smoking?) But that's not the job of the Court, to play superlegislature. Not every stupid, irrational, or carelessly drafted statute is a violation of the Constitution--and even worse, just because a bunch of lawyers living in DC who wear black robes think a law is stupid, irrational, or unjust, doesn't make it so.

I disagree. It does not "create" privileges or immunities which may not be abridged; it merely recognizes them. And the first eight amendments do the same thing. They specify particular privileges and immunities that the people retain, because the Constitution does not specifically invade them. They are not an exhaustive list. There is no reason they should be an exhaustive list with respect to the states (post-incorporation), if they are not with respect to the federal government.

I disagree. It's important to understand that when I talk about "priveleges or immunities", I do not mean that as a shorthand (or rather, longhand) for "rights". See generally, comments here. Neither the constitution nor the bill of rights - nor any instrument created by man - can create or confer rights; you are created with your rights, ex deo. See the Declaration of Independence. A privelege or immunity is the protection of a right from government action. When the bill of rights was signed, many of the rights which it protected were already protected against infractions by the states by state bills of rights; it was created to restrain the activities of the Federal government. However, it was adopted over the concerns of federalists that adding a bill of rights would suggest that the list was exhaustive, and that this would be dangerous to liberty; accord Federalist 84; III J. Story, Commentaries, §1855. The ninth amendment made it clear that this was not the case. It does not create rights, and it does not protect existing rights them from state action, even post-incorporation. It is a provision, in my view, given further explanation to the federal structure and the nature of the general government. As such, neither the ninth nor the tenth can be incorporated.

Clayton,

You keep avoiding answering the question...

I think you've mistaken my comments as being a continuation from your previous interlocutor, since you've not asked me any questions for me to avoid answering. ;)

In your linked post you say "As a United States citizen, you have certain priveleges and immunities, which is to say, you have rights which may not be invaded by the United States government." Then you say here, "It's important to understand that when I talk about "priveleges or immunities", I do not mean that as a shorthand (or rather, longhand) for "rights"."

It's not clear to me that you're being consistent in your definitions here, though I will stipulate that "privileges and immunities" differs from "rights". The nature of that difference is important here, I think, but we're rather running on already.

You also say in the linked post "If you believe, as I do, that the rights-bearing sections of the Constitution are restraints on government's ability to invade a person's rights, rather than positive grants OF those rights, then it follows naturally and logically that the bill of rights creates a series of privileges or immunities of citizens of the United States."

Well, if so, I see no reason why the Ninth Amendment cannot create privileges or immunities. I understand the crux of your argument to be that the 9th cannot provide a basis for judges to subsequently identify further rights/immunities/privileges, and that only the enumerated ones are actually protected. This again seems to me circular -- what is the meaning of a right that cannot be protected? I think the more rational reading is that, as you say, five judges CAN identify and protect rights beyond the initial 8, and that there is no reason not to incorporate the 9th along with the first 8.

Thank you for the citations; I'm happy to do further research on the topic. For now we should perhaps agree to disagree, and I'll throw my lot in with Randy Barnett et al. With any luck a court can at some point be persuaded to actually address these issues.

In your linked post you say "As a United States citizen, you have certain priveleges and immunities, which is to say, you have rights which may not be invaded by the United States government." Then you say here, "It's important to understand that when I talk about "priveleges or immunities", I do not mean that as a shorthand (or rather, longhand) for "rights"."

I don't see that as being contradictory. In the PrawfsBlawg post, I said (admittedly inartfully; I should say, what I was trying to say was) something to the effect of, as a United States citizen, you have certain privileges and immunities, which is to say that you have privileges and immunities that prevent the invasion of certain rights by the government. You're right, that's as clear as mud, but the bottom line is, a privelege or immunity (if you want, just to make it less clear again, a "constitutional right", as distict from a non-constitutional right) is a limitation on the reach of government to invade the rights with which we are all created. I'm sorry if I'm not getting this idea onto the page very well, I've been watching two days of the Roberts hearings and my brain is fried. ;)

Randy is an exceedingly convincing writer who has done some marvellous work for originalism that I've greatly appreciated and enjoyed, but on this matter, I must respectfully dissent.

You're right, that's as clear as mud, but the bottom line is, a privelege or immunity (if you want, just to make it less clear again, a "constitutional right", as distict from a non-constitutional right) is a limitation on the reach of government to invade the rights with which we are all created.

What do we mean by "right"? The term has undergone significant revision over the centuries. To a French nobleman of say, the 16th century, a droit is what we would today call a "privilege"--that is to say, some protection from governmental action that did not apply to commoners. (For example: noblemen were often allowed to bear arms--a privilege that French peasants were not allowed.)